The initial question is who will check the President and his or her people? During a time of national fear, who will hold the Executive accountable for its national security abuses or, perhaps more important, prevent them from occurring? More particularly, who will hold the President accountable for lies aimed at legitimating or covering up abuses of power?
There are two quick answers, found in most civics books. The first is the electorate -- it can vote out the President at the next election. But that often is years later, and only if it is the President's first term and if executive dissembling is publicly revealed and constantly criticized. The second quick answer is the Judiciary. It is the role of the courts to hold the Executive to constitutional dictates.
But what is the reality? The simplistic answer, that the judiciary checks the executive, is rooted in a widely-held fallacy -- that as a separate co-equal branch of government it is politically independent and that its judgments are necessarily neutral and objective. Bush v. Gore and Korematsu v. U.S. are just two of many cases that starkly reveal that fallacy by exposing the political underpinnings of judicial decisionmaking in controversial cases. It is not that nine black-robed men and women simply vote their personal and political preferences. The legal method imposes decisional constraints. To maintain public legitimacy judges have to speak in the language of statutes, rules, and case precedents. As many commentators have observed about Bush v. Gore, however, the moorings of the legal method are a weak tether in hot political cases. The intricacies of stare decisis and the complexities of the three-tier standard of equal protection review, for instance, are manipulable by sophisticated, politically attuned judges.
As illuminated by the Hamdi and Padilla "enemy combatant" cases and the prosecution of Dr. Wen Ho Lee, public advocacy emerges in two realms. The first realm is critical legal argument by lawyers and civil and human rights organizations aimed at shaping judges' threshold selections of the level of judicial scrutiny, and ultimately the judges' responses to the specific legal challenges to executive actions. As a complement to usually narrow traditional legal arguments, this kind of critical legal advocacy aims to reveal what is really at stake, who benefits and who is harmed (in the short and long term), who wields the behind-the-scenes power, which social values are supported and which are subverted, how political concerns frame the legal questions, and how societal institutions and differing segments of the populace will be affected by the court's decision.
The second realm of advocacy is a species of public education: journalist essays, pundit commentaries, public letters to the editor, clergy sermons, scholars' op-ed pieces, community workshops and school forums, all critically analyzing and advocating the need for the courts to carefully scrutinize the Executive's national security actions. The goal is to create in the public culture a compelling sense that it must be the courts that exercise "watchful care" over our constitutional liberties -- that the Executive is charged with protecting our people and institutions from threats from without, and in turn that our courts are charged with protecting our liberties from threats from our own institutions.
The timing of both kinds of public advocacy is crucial. Advocacy of accountability is imperative at the "front end" and at the "back end" of apparent national security abuses: